Perfect 10 Persists in Lawsuit Against Google

SAN FRANCISCO—Norm Zada has got to be setting some sort of record in terms of lawsuit diligence. The determined founder of Perfect 10 continues to press his copyright case against Google in U.S. District Court for the Central District of California, despite repeated knockdowns from the court.

According to WebProNews, "This week, Perfect 10 completed its filing of a motion for sanctions against Google in the U.S. District Court for the Central District of California. Perfect 10 is accusing Google of 'widespread discovery abuse,' which the company says includes multiple violations of three separate court orders."

The last activity in this case dates back to 2007, when a Ninth Circuit Appeals Court panel rejected Perfect 10's attempt to keep Google (and Amazon) from reproducing thumbnail photos of its models. At issue were the language of both the Copyright Act and the Digital Millennium Copyright Act (DMCA), with the former recognizing certain creator rights to images and the latter providing certain defenses against alleged infringement of such creator rights.

"Both the District Court and the Ninth Circuit panel found that Perfect 10 had a clear copyright to at least some of the images in question, and since Google did reproduce tiny versions of those images ("thumbnails"), the District Court ruled that Perfect 10 would probably succeed in establishing at trial that Google had violated its copyright. The question then became, as the Ninth Circuit framed it, whether Google could show that it could prove "fair use" under the Copyright Act and/or the DMCA as a legitimate defense," wrote Mark Kernes at the time.

Perfect 10 is now arguing that Google continues to violate provisions of the DMCA.

"Under the DMCA, a search engine such as Google may receive limited immunity from monetary damages for copyright infringement if it complies with the requirements of the DMCA," Zada said. "The search engine must act expeditiously to remove or disable access to infringing material upon receiving notice of infringement from the copyright owner, and it must adopt a procedure so that copyright holders will not have to provide the search engine with notices about the same infringing material or the same infringers over and over."

Perfect 10 further claims Google was ordered to produce its DMCA log, which the company defines as "a spreadsheet-type document summarizing DMCA notices received, the identity of the notifying party and the accused infringer, and the actions (if any) taken in response."